Doctrine of RES-JUDICATA-S.11. C.P.C.
provides-"No Court shall try any
suit or issue in which matter directly & substantially in a former suit b/w same
parties, or b/w parties under whom y or any of m claim, litigating under same
title, in a Court competent to try such subsequent suit or suit in which such
issue has been subsequently raised, & has been heard & finally decided by
such Court. Basis- 3 maxims - (i) 'Interest Republicae est: sit fines litium' it is
in interest of State that litigation should not be protracted but finished. (ii)
'Nemo debt lis vexari pro una ct cadem causa'. -No man ought to be vexed
twice for one & same cause. (iii) 'Res-judicata pro veritah selipoter'- A judicial
decision must be accepted as correct. 'Res' means a thing & 'judicata' means
already decided. Exhaustive in this Matter-- It is well established that doctrine.
of res-judicata codified in S. 11 C.P.C. is not exhaustive. S. 11 applies only to
civil suits. Essential Conditions-1.Matter-in-Issue: directly & substantially in
issue,actually or constructively in former suit. 2. Same Parties. 3.Same Title:
parties aforesaid litigated under same title in former suit. 4.Competent Court-
which decided former suit been a Court competent to try subsequent suit. 5.
Suit Heard & Finally Decided by Court. Obiects of Res-Judicata- 1. End of
Litigation.2. Protection Against Double Zeopardy. 3. Court Decision Correct &
Final. --Rule of res-judicata applies 'to execution proceedings. Bhaskar
Traders Vs. -M. Kunhiraman, A.I.R: 1988 Ker. 227. Similarly, principle of
constructive res-judicata is also applicable to execution proceedings & was
held so applicable even before said Explanation was inserted in 1976: Arjun
Singh Vs. Mohindra Kumar, A.I.R. 1964 SC 993; Mohanlal Vs. Krishna, AIR
1953 SC 65. ---Res-sub-judice relates to all matter pending judicial inquiry or trial
(Sub-judice). S. 1-0 bars trial of a suit in which matter directly and
substantially in issue is pending adjudication. DECREE> Formal expression
of an adjudication which, so far as regards court expressing it,
conclusively determines rights of parties. It shall be deemed to include
rejection of a plaint & determination of any question within S. 144, but
shall not include: a- Any adjudication from which an appeal lies as an
appeal from an order, or b- Any order of dismissal for default.
JURISDICTION OF CIVIL COURTS-Acc to S. 9, " Court shall (subject
to provisions here in contained) have jurisdiction to try all suits of a civil
nature excepting suits of which ir cognizance is eir expressly or
impliedly barred." Conditions- 1. Suit of Civil Nature- ‘Civil’ meaning, it
pertains to private rights & remedies of a citizen as distinguished
from criminal, political, etc. 2. Nature & Scope of Suit of Civil Nature
expression private rights & obligations of a citizen. Political &
religious questions are not covered Example-Suits of Civil Nature- (i)
Suits relating to right to property; (ii) Suits relating to right to worship;
(iii) Suits relating to taking out of religious procession; (iv) Suits relating
to right to share in offerings;(v) Suits for damages for civil wrongs
Suits Not of Civil Nature- i-Suits involving principally caste questions; (ii)
Suits involving purely religious rites or ceremonies; (ini) Suits for
upholding mere dignity or honour; (iv) Suits for recovery of voluntary
payments or offerings: (v) Suits against expulsion from caste: etc. 2---
Kinds of Jurisdiction- 1. Jurisdiction over Subject-Matter: Different
Courts has authority to try certain suits.of non-contentious types, e.g.,
loan on promissory notes or bonds, recovery of price of goods supplied
or work done but no jurisdiction to try suits for partition or for
injunction or for immovable properties or for specific performance of a
contract. District Judge alone has jurisdiction in respect of
testamentary & cases of guardianship. 2. Local or Territorial
Jurisdiction- Government fixed & beyond that limit it has no jurisdiction.
District Judge has jurisdiction within his district. 3. Pecuniary
Jurisdiction- Munsifs to value Rs. 25,000 in UP, Civil Judges above
25,000Rs. High Court has no pecuniary limitations. Munnalall Vs. State of
Punjab,AIR 1916 Punj: 59 (60). 4. Original or Appellate Jurisdiction-
Some of Courts exercise only original jurisdiction e.g., Munsif, & Judges
of Small Causes Courts. Civil Judges, District Judges & High Courts
have been conferred appellate powers.
ARREST BEFORE JUDGMENT- Acc Rule I Order 21, at any stage of
suit, court is satisfied, either by affidavit or otherwise-a) defendant with
intent to delay plaintiff, or to avoid any process of court, or to
obstruct or delay execution of any decree that may be passed against
him.- i) Has absconded or left local limits of jurisdiction of court, or.
ii) Is about to abscond or leave local limits of jurisdiction of court, or iii)
Has disposed of or removed from local limits of jurisdiction of court
his property or any part thereof, or (b) That defendant is about to leave
India under circumstances affording reasonable probability that
plaintiff will or may thereby be obstructed or delayed in. Where Arrest
Before Judgment not Allowed-An order for arrest of defendant before
judgment cannot be obtained in any suit for land or immovable property
specified in Clauses (a) to (d) of S. 16 of Code. 2. ATTACHMENT
BEFORE JUDGMENT—Acc. to Rule S Order 38, where, at any stage of a
suit, court is satisfied, by affidavit or otherwise, that defendant, with
intent to obstruct of delay execution of any decree that may be passed
against him, (a) is about to dispose of whole or any part of his property,
or (b) is about to remove whole or any part of his property from focal
DECREE 5 Essentials- 1. Must be an adjudication. 2. Such adjudication
must have been given in a suit. 3. determined rights of parties with regard
to matters in controversy in suit. 4. Such determination > conclusive
nature; & formal expression of adjudication. --- 1. Adjudication-- constitute
a decision of a court to be a decree.2. Suit--not defined C.P.C. But in
Hansraj Vs. Dehra Dun-Mussoori Electric Tramways Co.Ltd.A.I.R.1933S.C.
63. The application as suits; e.g., proceedings under Indian Succession.
Act, the Hindu Marrjage Act, the L& Acquisition, Act, the Arbitration
Act, etc.3. Rights of Parties in Controversy:. determined rights of parties
4. Conclusive Determination- conclusive nature & final, interlocutory
order doesn’t decide rights of parties finally is not a decree. 5. Formal
Expression-- requirements of form with. Misdescription of decision as
an order, which amounts to a decree. Kinds of Decree- I. Preliminary
decree; 2. Final decree; & 3. Partly preliminary & partly final decree. 1.
Preliminary D- rights of parties with is passed in cases which court has
first to adjudicate upon rights of parties & has then to stay its h&s for
the time being, until it is in a position to pass a final decree in suit. 2.
Final Decree.-(i) When within prescribed period no appeal is filed against
decree or matter decided by decree of highest court; & ii- When decree
so far as regards the court passing it, completely disposes of suit. 3.
Partly Preliminary & Partly Final Decree. - e.g., in suit for possession of
immovable property with mesne profits. court- (a) Decrèes possession of
the property; & (b) Directs an inquiry into mesne profits > Order 20, Rule
12 – Suits for possession and mesne profit. Smt. Subashini v. S.
Sankaramma (2018). Order 34, Rule 4 –Suits for the sale of the
mortgaged property. Caselaw Kanti Ram v. Kutubuddin Mahomed
(1894).
Fundamental Rules of Pleading -Acc.'to Order VI Rule 2 of C.P.C., 1. Every
Pleading must State Facts & not Law- a-affirmative(state facts) or b-
negative(not state law.) implication should not be stated in a pleading- (a)
Provisions of law;(b) Conclusions of law; & (c) Conclusions of mixed
law & facts.-- For Ex. - Union of India in its written statement denied service
of notice U/S. 80, C.P.C., but did not plead that suit was premature &,
therefore, not maintainable, it was held that averments in plaint itself
established beyond doubt that institution of suit was premature. It was
not necessary for defendant to. recopulate those facts & consequences
therefrom. Exceptions-- (i) Foreign Law- court not bound to judicial
notice of Foreign laws. (ii) Custom-Court not bound - judicial notice of
customs or usages of trade & therefore, they, too, must be pleaded like
any other fact. (fil) Mixed Questions of Law & Fact- stated in pleadings &
cannot be allowed to be raised subsequently.(iv) Legal Pleas--rule
against stating law in pleadings does not exclude 'legal pleas to a suit, or
pleas denying legal rights claimed by opposite party. (v) Inferences of
Law_- Order VI, Rule 7, C.P.C., inference of law should not be stated in
plaints or written statements yet a departure from this rule shall be
condoned. -- 2. Every Pleading must State all Material Facts & Material
Facts Only (i) Every Pleading must State Material Facts Only-- Test for
Determining Material Facts- (a) In a suit for libel (b) In a suit for injunction
(c) In a suit for negligence. --(ii) Every Pleading must State all Material
Facts Supreme court has laid down in S.N. Balkrishan Vs. Georgé
Fern&ez AIR 1969; omission of single material fact leads to incomplete
cause of action & statement of claim becomes bad. ---- Calcutta High
Court decision in S. Chatterjee Vs. Nilima Chatterjee, A.I.R. 1970 Cal, suit
divorce on ground of adultery.
Powers of Court to Issue Commissions- Ss. 75 to 78 -detailed
provisions under Order 26 C.P.C. - evidence of à witness in an action,
whether he is a party to suit or not, should be taken in open court and
tested by cross-examination. Inability to attend court on grounds of
sickness or infirmity or detriment to public interest may justify issue of a
commission. S. 75, court issue a commission for: 1. To Examine
Witnesses Ss. 76-78; Order 26 Rules I-8. court issue commission for
examination on interrogatories 2. For Local Investigation Acc. to Rules 9
& 10, court may, in any suit, issue a commission to such person as it
thinks fit directing him to make local investigation and to report thereon
for purpose of (a) elucidating any matter in dispute, or (b) ascertaining
market value of any property or amount of any mesne profits or damages
or annual net profits. e.g.;, whether suit premises is really occupied by
tenant or by strangers. 3.To Examine Accounts- Acc. to Rules 11 and 12,
in any suit in which an examination or adjustment of accounts is
necessary. court may issue a commission to such person as it thinks fit
directing him to make such examination or adjustment. 4. To Make Partition-
Acc to Rules 13 & 14, where a preliminary decree for partition of immovable
property has been passed, court may issue a commission to such person as it
thinks fit to make a partition or separation according to rights as declared in such
decree. 5. For Scientific Investigation--According to Rules 10-4, where any
question arising in a suit involves any scientific investigation which cannot, in
opinion of court, be conveniently conducted before court. 7.For Performance of
Ministerial Act- Rule10-B, suit involves performance of any ministerial act which
cannot, in opinion of court, be conveniently performed before court Amendment
Act 1976, Rules 10-A to 10-C. 8.Commissions for Foreign Tribunals--Rules 19-
22. High Court is satisfied that a foreign court wishes to obtain evidence of a
limits of jurisdiction of court; court may direct defendant, within in order,
to produce and place at disposal of court, when required. Court may
also in order direct conditional attachment and estimated value thereof.
If an order of attachment is made without. complying with provisians of
Rule 5(1), such attachment shall be void. Before an order of attachment
can be made, court must be satisfied about following two conditions- (i
That defendant is about to dispose of whole or any part of his property;
& (ii) That disposal is with intention of obstructing or delaying execution
of any decree that may be passed against him.

EXECUTION of a Decree -signifies enforcement or giving effect to the

judgment or order of court of justice vide Halsbury's Laws of Engl&, 4th
Edn., Vol. 17, P. 232 : Concise Oxford Pictionary (1990).p.408. Who
can Apply for Execution of a Decree- (i) The decree-holder vide,R.10.(if).
The legal representatives of the decree-holder. if the decree-holder is
dead vide R. 10. (iii) Any person claiming under the decree-holder vide
S.146. (iv) The transferee of the decree-holder. Modes of Execution of a
Decree 1. Delivery of Property--(a) Movable Prop.- S.51.(a), Rule 31, it
may be executed (i) by seizure & delivery of the property; or (ii) by
detention of the judgment-debtor; or (iil) by the attachment of his property;
or (iv) by attachment & detention both vide R.31 The words specific
movable do not include money, & therefore. a decree for money cannot be
executed under Rule 31 vide: Menon Vs. Menon, AIR 1914 Mad 572.--b)
Immovable Property—Acc. to Rules 35 & 36-where the decree is for
immovable property in the possession of the judgment-debtor or in the
possession of the person bound by the decree. 2. Attachment & Sale of
Property or by Sale without Attachment-- S. '51(b), court is empowered to
attach property if it is situated with in the local limits of the jurisdiction of
the court vide : Raoof Vs. Lakshmipathi, AIR 1969 wad 268. The Words
attachment & sale in clause (b) of S. Si are to be read disjunctively vide :
Amulya Ch&ra Vs. Pashupati nath, AIR 1951 Cal 48 (FB). 3.Arrest &
Detention-- S. 51(c) one of the mode of executing decree is arrest &
detention in civil prison of the judgment-debtor. However, CI. (c) should be
read subject to the proviso to S. 51. 4.Appointment of Receiver S.51
CI(d), Execution by appointment of a receiver is known as equitable
execution & is entirely within the discretion of the court. 5.By such Other
Manner as the Nature of the Relief Granted may Require According to
S.51, the fifth & the last mode of execution is based on equity & is ir the
discretion of the court.
Powers of Appellate Court- S. 107 & Rules 23 to 29 & 33 of Order 41
provide the powers of appellate court while hearing first appeals. 1. To
Determine a Case Finally S. 107 (1)(a) & Rule of Order 41. enable the
appellate court to dispose of a case finally.- 2. To Remand a Case Trial
Court-Remand means to send back. S. 107 (1) (b), Rules 23 & 23-A. 3.
To Frame Issues & Refer them for Trial- Where the lower court has
omitted (i) to frame any issue; or (ii) to try any issue; or (iii) to
determine any question of fact, which is essential to the right decision of
the suit upon merits, 4. To Order to Take Additional Evidence-
appellate court shall decide an appeal on the evidence led by the parties
before the trial court 5. To Modify Decree Rule 33 of Order 41
empowers an appellate court to make whatever-order it think fit, not
only as between the appellant 6. To Execute all the Functions as the
Courts of OriginalJurisdiction-- which the court of original jurisdiction is
entitled to do. 7. To Pass any Decree & Order- Order 41, Rule 33 says
that " appellate Court shall have power to pass any decree & make any
order which ought to have been passed or made & to pass or made
such further or other decree or order as the case may require, The
Supreme Court in M/s. Bihar Supply Syndicate Vs. Asiatic Navigation,
A.I.R. 1993 SC 2054 has analysed this provision.